Affirmed and Majority and Concurring Opinions filed August 13, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00388-CR

ERNEST LEYBA, Appellant,

V.

THE STATE OF TEXAS, Appellee.

On Appeal from the 183rd District Court

Harris County

Trial Court Cause No. 1287731

M A J O R I T Y O P I N I O N

Appellant Ernest Leyba was convicted of first-degree murder and sentenced 

to a term of life imprisonment. On appeal, our review is limited to deciding 

whether the trial court abused its discretion by admitting evidence of Leyba’s prior 

convictions. We affirm.
2

I

Leyba was charged with the stabbing death of Brandon Tate. Because Leyba 

admitted to the stabbing in the proceedings below, the only issue for the trier of 

fact was whether he had acted in self-defense.

The prosecution’s theory of the case was that Leyba killed Tate in the midst 

of a drug transaction. On the night of Tate’s death, Leyba called Mikelis Jackson, 

his drug dealer, to arrange a large purchase of crack cocaine. Jackson agreed to the 

transaction over the phone, then drove to Leyba’s hotel to finalize the deal. Tate 

accompanied Jackson for the ride.

Once they arrived at the hotel, Jackson and Tate remained in their vehicle, 

expecting to meet Leyba in the parking lot. Leyba came around the back of the car 

and “thumped” on the passenger side. Jackson instructed Leyba to climb into the 

backseat, but Leyba opened the front passenger door instead. Then, without 

provocation, Leyba stabbed Tate in his chest and leg. According to Jackson, Leyba

also demanded that Jackson “break” himself, meaning that he needed to empty his 

pockets and surrender everything he had.

Leyba’s version of the events differed significantly. After taking the stand in 

his own defense, Leyba testified that Jackson called him and made threatening 

statements regarding a debt. Leyba agreed to pay Jackson his money, and offered 

to meet Jackson outside his hotel room. Leyba testified that he presented the 

money to Tate on the passenger side of the car, anticipating that Tate would then 

tender it to Jackson. Tate declined to handle the money, however, so Leyba

extended his arm farther inside the vehicle to deliver the money to Jackson 

directly. According to Leyba, Jackson then pulled him into the car and Tate held 

him down. Leyba testified that he somehow wrestled himself free, retrieved his 

knife, and stabbed Tate in the chest. He claimed the stabbing was necessary 
3

because Jackson had a gun and he feared for his life. Jackson denied having a gun 

though, and no firearm was ever recovered from the scene.

II

A

In his first issue, Leyba argues that the trial court abused its discretion by 

allowing the State to impeach him with evidence of his prior convictions. The State 

elicited testimony concerning a number of extraneous offenses, including a 2008 

conviction for assault, a 2005 conviction for burglary, a 1996 conviction for 

driving under the influence, a 1994 conviction for illegal possession of a weapon, 

and two 1988 convictions for armed robbery and illegal possession of a weapon.

The State also questioned Leyba about two other convictions, one in 2005 for 

battery and the other in 1997 for resisting arrest, but Leyba denied these 

convictions and no judgments of conviction were ever introduced.

The admissibility of a prior conviction is determined by Rule 609 of the 

Texas Rules of Evidence. The pertinent text from this rule provides:

(a) General Rule. For the purpose of attacking the credibility of a 

witness, evidence that the witness has been convicted of a crime shall 

be admitted if elicited from the witness or established by public record 

but only if the crime was a felony or involved moral turpitude, 

regardless of punishment, and the court determines that the probative 

value of admitting this evidence outweighs its prejudicial effect to a 

party.

(b) Time Limit. Evidence of a conviction under this rule is not 

admissible if a period of more than ten years has elapsed since the 

date of the conviction or of the release of the witness from the 

confinement imposed for that conviction, whichever is the later date, 

unless the court determines, in the interests of justice, that the 

probative value of the conviction supported by the specific facts and 

circumstances substantially outweighs its prejudicial effect.
4

Tex. R. Evid. 609.

The time limit described in subdivision (b) represents a substantive 

departure from former article 38.29 of the Texas Code of Criminal Procedure, the 

statutory predecessor to Rule 609. See Ex parte Menchaca, 854 S.W.3d 128, 131 

(Tex. Crim. App. 1993) (stating that article 38.29 is the predecessor to Rule 609).

The Legislature repealed Article 38.29 effective September 1, 1986, when the rules 

of evidence, including Rule 609, first went into effect in criminal cases. Under 

Article 38.29, evidence that a witness had been charged with a criminal offense 

could not be used to impeach that witness unless a final conviction had resulted, or 

a suspended sentence had been given and had not been set aside, or the witness had 

been placed on probation and the period of probation had not expired.1 Unlike Rule 

609, Article 38.29 contained no express prohibition on convictions that were too 

remote.

Where the statute was silent, however, common-law rulings filled in. In 

cases decided before the adoption of the rules of evidence, the Court of Criminal 

Appeals held that a witness’s credibility could be attacked with a prior conviction 

if the prior conviction was for a felony or a crime involving moral turpitude that 

was not “too remote.” McClendon v. State, 509 S.W.2d 851, 855–57 (Tex. Crim. 

 

1 Article 38.29 provided as follows:

The fact that a defendant in a criminal case, or a witness in a criminal case, is or 

has been, charged by indictment, information or complaint, with the commission 

of an offense against the criminal laws of this State, of the United States, or any 

other State shall not be admissible in evidence on the trial of any criminal case for 

the purpose of impeaching any person as a witness unless on trial under such 

indictment, information or complaint a final conviction has resulted, or a 

suspended sentence has been given and has not been set aside, or such person has 

been placed on probation and the period of probation has not expired. In trials of 

defendants under Article 36.09, it may be shown that the witness is presently 

charged with the same offense as the defendant at whose trial he appears as a 

witness.
5

App. 1974) (op. on reh’g); Crisp v. State, 470 S.W.2d 58, 59–60 (Tex. Crim. App. 

1971). The Court of Criminal Appeals recognized that trial courts exercised great 

discretion when admitting evidence of prior convictions, and courts based their 

decisions on whether a conviction was too remote on the facts and circumstances 

of each case. See McClendon, 509 S.W.2d at 855–56; Crisp, 470 S.W.2d at 59.

Though it was not a hard and fast rule, courts generally determined that prior 

convictions were too remote if more than ten years had elapsed between the date of 

the witness’s testimony and the later of the date the witness was convicted or the 

date the witness was released from any confinement imposed for that conviction. 

See McClendon, 509 S.W.2d at 855–57; Penix v. State, 488 S.W.2d 86, 88 (Tex. 

Crim. App. 1972); Crisp, 470 S.W.2d at 59–60. By following this guideline, courts

acknowledged the idea that a witness is generally capable of reforming his 

character over a period of law-abiding conduct. But the guideline had one 

important exception: if there was evidence that the witness had failed to reform his 

character—for instance, by committing a subsequent felony or crime involving 

moral turpitude—then the taint of remoteness was destroyed and the witness could

be impeached with evidence of the prior conviction. See McClendon, 509 S.W.2d 

at 855 (“[E]vidence of lack of reformation or subsequent conviction of another 

felony or misdemeanor involving moral turpitude causes the prior conviction not to 

be subject to the objection of remoteness.”); Crisp, 470 S.W.2d at 59.

In recent years, several courts of appeals have applied the common-law 

exception, sometimes described as the “tacking doctrine,” when performing a Rule 

609 analysis. According to these courts, if a conviction is more than ten years old, 

it may be “tacked” onto a subsequent conviction for remoteness purposes, which 

then alters the legal standard governing its admission. See Jackson v. State, 50 

S.W.3d 579, 591–92 (Tex. App.—Fort Worth 2001, pet. ref’d); Rodriguez v. State, 
6

31 S.W.3d 359, 363 (Tex. App.—San Antonio 2000, pet. ref’d); Hernandez v. 

State, 976 S.W.2d 753, 755–56 (Tex. App.—Houston [1st Dist.]), pet. ref’d, 980 

S.W.2d 652 (Tex. Crim. App. 1998).

2

But see Hankins v. State, 180 S.W.3d 177, 

180 (Tex. App.—Austin 2005, pet. ref’d). Under this approach, if a subsequent 

conviction indicates “a lack of reformation,” then the conviction more than ten 

years old may be analyzed under Rule 609(a)’s “outweighs” standard rather than 

Rule 609(b)’s “substantially outweighs” standard. See Jackson, 50 S.W.3d at 591–

92; Rodriguez, 31 S.W.3d at 363; Hernandez, 976 S.W.2d at 755–56.

Not all courts continue to apply the tacking doctrine. In Hankins v. State, the 

Austin court of appeals reasoned that Rule 609 creates only two distinct categories 

of prior convictions: those more than ten years old, and those less than ten years 

old. See Hankins v. State, 180 S.W.3d 177, 180 (Tex. App.—Austin 2005, pet. 

 

2 Hernandez, decided by our sister court here in Houston, is the leading case on tacking. 

The Fort Worth and San Antonio courts of appeals have followed Hernandez in published 

opinions. See Jackson, 50 S.W.3d at 592; Rodriguez, 31 S.W.3d at 363. The Dallas, Amarillo, 

and Corpus Christi courts of appeals have also followed Hernandez, but only in unpublished 

opinions which have no precedential value. See Bennett v. State, No. 05-01-01056-CR, 2002 WL 

31165162, at *5 (Tex. App.—Dallas Oct. 1, 2002, pet. ref’d) (not designated for publication); 

Myers v. State, No. 07-06-0424-CR, 2008 WL 4722974, at *3 (Tex. App.—Amarillo Oct. 28, 

2008, no pet.) (mem. op., not designated for publication); Erevia v. State, No. 13-99-232-CR, 

2000 WL 34410039, at *4 (Tex. App.—Corpus Christi Aug. 31, 2000, no pet.) (not designated 

for publication).

Our court has also applied the tacking doctrine in several unpublished decisions. See West 

v. State, No. 14-11-00204-CR, 2012 WL 1606239, at *8 (Tex. App.—Houston [14th Dist.] May 

8, 2012, pet. ref’d) (mem. op., not designated for publication); Adkins v. State, No. 14-06-00402-

CR, 2007 WL 2330795, at *2 (Tex. App.—Houston [14th Dist.] Aug. 16, 2007, no pet.) (mem. 

op., not designated for publication); Virgil v. State, No. 14-99-00214, 2001 WL 123990, at *1 

(Tex. App.—Houston [14th Dist.] Feb. 15, 2001, pet. ref’d) (not designated for publication); 

Wolt v. State, No. 14-99-00524-CR, 2000 WL 1262530, at *6 n.4 (Tex. App.—Houston [14th 

Dist.] Sep. 7, 2000, pet. ref’d) (not designated for publication); Virgil v. State, No. 14-99-00214-

CR, 2000 WL 729419, at *2 (Tex. App.—Houston [14th Dist.] June 8, 2000, pet. ref’d) (per 

curiam) (not designated for publication); McBride v. State, No. A14-88-00157-CR, 1989 WL 

81326, *3 (Tex. App.—Houston [14th Dist.] July 20, 1989, no pet.) (not designated for 

publication). However, like the Dallas, Amarillo, and Corpus Christi cases, these cases have no

precedential value because they have not been designated for publication. See Tex. R. App. P. 

47.7(a). 
7

ref’d). “Rule 609 does not include a third category of prior convictions codifying 

the [common-law] exception.” Id. Because the rule permits no room for tacking, 

the Austin court of appeals determined that the admission of a prior conviction 

greater than ten years old is governed exclusively by Rule 609(b), which requires 

that the probative value of the conviction “substantially outweigh” its prejudicial 

effect. Id.

The courts that have applied the tacking doctrine to Rule 609 have not 

explained how this doctrine can be reconciled with the language of the rule. Rule 

609 plainly provides that a conviction more than ten years old cannot be used to 

impeach a witness unless “the court determines, in the interests of justice, that the 

probative value of the conviction supported by the specific facts and circumstances 

substantially outweighs its prejudicial effect.” Tex. R. Evid. 609(b). Instead of 

looking to the rule itself, the courts applying the tacking doctrine to Rule 609 

continue to rely on common-law cases that predate the adoption of the rules of 

evidence for use in criminal cases. See Jackson, 50 S.W.3d at 591–92; Rodriguez,

31 S.W.3d at 363; Hernandez, 976 S.W.2d at 755–56. These common-law cases 

are not on point because they were decided under the common law and are 

contrary to the unambiguous language of Rule 609. See Tex. R. Evid. 609; Prince 

v. State, 192 S.W.3d 49, 55 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) 

(distinguishing common-law remoteness cases in context of Rule 404 analysis 

because they were decided before the adoption of rules of evidence in criminal 

cases effective September 1, 1986).

In the more than twenty-six years since the rules of evidence were adopted 

for use in criminal cases, the Court of Criminal Appeals has not applied the tacking

doctrine in a single reported case. We agree with the Austin court of appeals that

Rule 609 has supplanted the common-law exception and that under the rule’s plain 
8

meaning, tacking is no longer permitted. See Hankins, 180 S.W.3d at 180. 

Therefore, to the extent we must review convictions that are more than ten years

old, we will apply the more rigorous standard under Rule 609(b). In other words, 

we will ask whether the trial court abused its discretion in determining, in the 

interests of justice, that the probative value of the conviction supported by the 

specific facts and circumstances substantially outweighs its prejudicial effect. See 

Tex. R. Evid. 609(b); Hankins, 180 S.W.3d at 180.

B

Leyba presents the following complaints: (1) his 2008 conviction for assault 

is inadmissible because it is neither a felony nor a crime involving moral turpitude; 

(2) his pre-2000 convictions are inadmissible because they are too remote; and 

(3) his only non-remote felony, the 2005 conviction for burglary, is inadmissible 

because its probative value does not outweigh its prejudicial effect. We first 

consider whether these complaints have been preserved for appellate review.

Before a reviewing court may determine whether a trial court erred in the 

admission of evidence, the error must have been preserved by a proper objection 

and a ruling on that objection. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. 

App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). A 

proper objection is one that is timely and specific. Tex. R. App. P. 33.1. Further, 

with two exceptions, a party must continue to object each time the inadmissible 

evidence is offered, or else the error is forfeited. Geuder, 115 S.W.3d at 13. The 

two exceptions require counsel to obtain either a running objection during trial or a 

ruling in a hearing outside the presence of the jury. See Tex. R. Evid. 103(a)(1); 

Geuder, 115 S.W.3d at 13.

In this case, the trial court conducted a hearing outside the jury’s presence to 

discuss the admission of Leyba’s prior convictions. During that hearing, defense 
9

counsel raised an objection only as to the convictions predating the year 2000. He 

stated:

There are nine different criminal convictions that are listed all out of 

the State of New Mexico. And three of them are within the past ten 

years, 2005, 2005 and 2008. The remainder are more than ten years 

old. And our position is that the convictions that are more than ten 

years old are not admissible.

The trial court overruled his objection. Thus, error was preserved on Leyba’s 

second complaint.

During cross-examination, the prosecutor elicited testimony about Leyba’s 

three most recent convictions. Defense counsel did not object to this testimony. 

Accordingly, error was not preserved on the admission of Leyba’s 2008 conviction 

for assault and his 2005 conviction for burglary. With his first and third complaints 

forfeited, we limit our review to Leyba’s pre-2000 convictions. We do not address 

the 1997 conviction for resisting arrest, however, because Leyba denied this 

conviction and the State offered no other evidence in support of it. Cf. Bice v. 

State, 642 S.W.2d 263, 266 (Tex. App.—Houston [14th Dist.] 1982, no pet.) 

(concluding that the defendant was not impeached where she denied an alleged 

statement and the prosecution introduced no other evidence demonstrating the 

falsity of her response).

1

We begin with Leyba’s 1996 conviction for driving under the influence of 

alcohol, which is the most recent conviction among Leyba’s pre-2000 offenses. 

The State concedes that the trial court erred by admitting evidence of this 

conviction; the record suggests that the conviction was not a felony offense, and 

driving under the influence is not a crime involving moral turpitude. See Shipman 

v. State, 604 S.W.2d 182, 184 (Tex. Crim. App. [Panel Op.] 1980).
10

Assuming the trial court did err, its decision to admit this evidence is subject 

to a harm analysis for nonconstitutional error. Under this standard, error must be 

disregarded unless it affects a defendant’s substantial rights. Tex. R. App. P. 

44.2(b). An error affects a defendant’s substantial rights when the error has a 

substantial and injurious effect or influence on the jury’s verdict. King v. State, 953 

S.W.2d 266, 271 (Tex. Crim. App. 1997). If the error had no or only a slight 

influence on the verdict, the error is harmless. Johnson v. State, 967 S.W.2d 410, 

417 (Tex. Crim. App. 1998). An appellate court should consider “everything in the 

record, including any testimony or physical evidence admitted for the jury’s 

consideration, the nature of the evidence supporting the verdict, the character of 

the alleged error and how it might be considered in connection with other evidence 

in the case.” Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). An 

appellate court should also consider the jury instruction given by the trial judge, 

the State’s theory and any defensive theories, closing arguments and even voir 

dire, if material to the defendant’s claim. Id.

Considering the record as a whole, we hold that the trial court’s error did not 

have a substantial and injurious effect or influence on the jury’s verdict. Leyba was 

only briefly questioned about his conviction for driving under the influence. No 

other evidence was introduced regarding this conviction, and the prosecutor did not 

emphasize the conviction during closing argument.

Furthermore, the State presented a strong case that Leyba was guilty of the 

charged offense. The evidence was undisputed that Leyba caused Tate’s death: 

Jackson testified about the stabbing, and Leyba admitted to the act. The record also 

cast doubt on Leyba’s claim of self-defense. The evidence showed, for example,

that Leyba used his knife to puncture Jackson’s tires, an act inconsistent with 

Leyba’s claim that he considered Jackson a threat. Another witness at the scene 
11

also testified that Leyba tried to run away and dispose of the murder weapon. The 

record additionally revealed that no firearms were ever recovered from the scene. 

Jackson even testified that if he had had a weapon, he would have used it against 

Leyba to defend himself. In light of this evidence and the fact that the prosecutor 

elicited testimony about more recent and serious offenses, it is not apparent that the 

jury placed any measurable significance on Leyba’s conviction for driving under 

the influence of alcohol. We conclude that the trial court’s error was harmless.

2

Leyba testified that he was convicted in 1994 for illegally possessing a 

weapon, a felony conviction for which he was sentenced to approximately two and 

a half years in prison. The date of Leyba’s release preceded the time of trial by 

more than ten years. Therefore, evidence of the prior conviction was inadmissible 

unless the trial court “determine[d], in the interests of justice, that the probative 

value of the conviction supported by specific facts and circumstances substantially 

outweighed its prejudicial effect.” See Tex. R. Evid. 609(b); Hankins, 180 S.W.3d 

at 180. 

We consider the following set of factors when weighing the probative value 

of a conviction against its prejudicial effect: (1) the impeachment value of the prior 

crime; (2) the temporal proximity of the past crime relative to the charged offense 

and the witness’s subsequent history; (3) the similarity of the prior conviction to 

the charged offense; (4) the importance of the witness’s testimony; and (5) the 

importance of the witness’s credibility. See Theus v. State, 845 S.W.2d 874, 880 

(Tex. Crim. App. 1992); LaHood v. State, 171 S.W.3d 613, 620 (Tex. App.—

Houston [14th Dist.] 2005, pet. ref’d). These factors are not exclusive, however,

and they cannot be applied with “mathematical precision” because several factors 
12

relevant to assessing probative value cut in different directions. Theus, 845 S.W.2d 

at 880.

The prosecution in this case did not offer any “specific facts and 

circumstances” beyond the date and the type of crime to justify the admission of 

Leyba’s prior convictions. See Tex. R. Evid. 609(b). Thus, we are forced to rely on 

the barest of facts in our analysis. See Hankins, 180 S.W.3d at 181. In Theus, the 

Court of Criminal Appeals determined that convictions with the highest 

impeachment value tend to be crimes involving deception. See Theus, 845 S.W.2d 

at 881. Crimes of violence have less impeachment value because of their greater 

potential for prejudice. Id. In this case, the first factor is neutral. The record does 

not reveal the circumstances in which Leyba was convicted for illegally possessing 

a weapon, and mere possession by itself does not necessarily involve either 

deception or violence.

The second factor favors admissibility if the past crime is recent and if the 

witness has demonstrated a propensity for running afoul of the law. Id. The past 

crime was not recent in this case; the date of conviction preceded the date of the 

charged offense by more than fifteen years. However, the record also demonstrated 

that Leyba has failed to rehabilitate in recent years. In a short span of time, Leyba 

was convicted of both burglary and assault, the latter of which predated Tate’s 

murder by only two years. This factor does not weigh greatly in favor of either 

admission or exclusion.

The third factor requires that the court explore the similarity between the 

past crime and the offense for which the defendant is now on trial. Evidence of the 

prior conviction is less likely to be admissible if the past and present offenses are 

similar; this is because a higher degree of similarity increases the danger that the 

jury would convict on the perception of a past pattern of conduct, rather than on 
13

the facts of the charged offense. Id. The record here does not identify what type of 

weapon Leyba was convicted of illegally possessing. Furthermore, the record does 

not indicate that Leyba used the weapon in a violent or threatening manner, unlike 

in this case. This factor is neutral in our analysis.

Factors four and five are related because both depend on the nature of the 

defendant’s defense and the means available to him of proving that defense. Id. In 

situations where a defendant presents an alibi defense and can call other witnesses, 

the defendant’s credibility is not likely to be a critical issue. Id. By contrast, when 

the case involves the testimony of only the defendant and the State’s witnesses, the 

importance of the defendant’s testimony and credibility increases. Id. As the 

importance of the defendant’s credibility increases, so will the need to allow the 

State an opportunity to impeach the defendant’s credibility. Id. Leyba called 

himself as the only defense witness in this case. Because his credibility was 

important, these final factors would support admission of the prior conviction.

After considering all five factors together, we are not convinced that the 

prosecutor satisfied her difficult burden under Rule 609(b). As we mentioned 

before, the prosecutor only established the date and type of the conviction. The 

prosecutor did not explain how the prior conviction had any probative value, or 

that this probative value was supported by specific facts and circumstances. 

Considering that Leyba did not deny using a weapon in the instant case, the 

probative value of this prior conviction appears to have been minimal. Because 

there is no indication that this value substantially outweighed its prejudicial effect, 

we hold that the trial court abused its discretion by allowing this evidence to be 

admitted.

We now consider whether the trial court’s error resulted in harm. See Tex. 

R. App. P. 44.2(b). In the previous section, we were persuaded by the strong case 
14

that was presented against Leyba when we found harmless error in the admission 

of another remote conviction. We were also persuaded by other weaknesses in 

Leyba’s asserted claim of self-defense. Consistent with our prior analysis, we 

conclude that the trial court’s error in admitting Leyba’s weapon conviction did not 

have a substantial and injurious effect on the jury’s verdict. The prosecutor did not 

emphasize this conviction during trial, and she only briefly mentioned it during 

closing argument. The prosecutor was also careful to instruct the jury, “You can’t 

find [Leyba] guilty because he’s done bad stuff before, but you can use those 

convictions to decide whether or not you think he’s telling you the truth now.” 

After reviewing the entire record, we are reasonably assured that the conviction 

had only a slight effect, at most, on the jury’s determination of guilt. The trial 

court’s error was therefore harmless. See Johnson, 967 S.W.2d at 417.

3

We turn next to Leyba’s 1988 conviction for armed robbery, a felony 

offense for which Leyba was sentenced to seven years’ confinement. Because 

Leyba’s release for that conviction predated the charged offense by more than ten 

years, our analysis is again controlled by Rule 609(b) and the factors discussed in 

Theus v. State.

Beginning with the first factor, we cannot agree that the impeachment value 

of Leyba’s armed robbery conviction was especially high. Although robbery, as a 

crime of theft, contains certain elements of deception, it also involves the threat or 

use of violence. See Simpson v. State, 886 S.W.2d 449, 452 (Tex. App.—Houston 

[1st Dist.] 1994, pet. ref’d). Neither side introduced any specific details of the 

underlying offense. This factor does not weigh strongly in favor of either 

admission or exclusion. See Davis v. State, 259 S.W.3d 778, 782 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d) (stating that impeachment value was unclear 
15

where prosecution did not introduce any details regarding prior robbery 

convictions).

The second factor is neutral for the same reasons discussed earlier: the 

conviction is not recent, but Leyba’s subsequent history demonstrates a propensity 

for running afoul of the law.

The third factor favors exclusion because armed robbery and murder have 

certain similarities, at least on the facts of this record. Leyba used a knife in the 

present case, and presumably, a weapon was also involved in the earlier “armed” 

robbery. The two crimes are also similar because the evidence supported a finding 

that Leyba had attempted to rob Jackson of drugs during the course of Tate’s 

murder. These similarities are prejudicial because they increase the risk that the 

jury would convict Leyba on a pattern of past conduct.

Although the final two factors support the State’s position, when all five 

factors are weighed together, we conclude that the trial court abused its discretion 

by admitting evidence of the armed-robbery conviction. The prejudice associated 

with this conviction was high because it was similar to the charged offense, and 

more so than any of Leyba’s more recent convictions. The prosecution did not 

adduce any specific facts or circumstances showing how the conviction’s probative 

value substantially outweighed its prejudicial effect. We must therefore determine 

whether the admission of this evidence was harmful.

Again, we look at the entire record in our evaluation of harm. Viewing the 

record as a whole, the evidence seemed to greatly undermine Leyba’s claim of 

self-defense. Jackson testified that Leyba stabbed Tate while Tate was sitting in a 

car. Leyba did not testify that Tate was armed or that he posed a direct and

imminent threat. Leyba claimed instead that Jackson had a gun; however, no 

firearm was ever found, and the evidence further demonstrated that Jackson, unlike 
16

Leyba, had not attempted to flee the scene and dispose of his weapon. The record 

does not indicate that the armed-robbery conviction had a substantial and injurious 

effect or influence on the jury’s verdict.

4

Finally, we examine the trial court’s admission of Leyba’s 1988 conviction 

for illegally possessing a weapon. Our analysis does not different significantly 

from our review of Leyba’s more recent conviction for the same offense. As we 

stated earlier, the first three Theus factors are all neutral. The impeachment value is 

unclear because merely possessing a weapon does not suggest either a propensity 

for deception or violence. The conviction is quite remote, but its remoteness is 

balanced by Leyba’s failure to reform his behavior in the interim. The similarity 

between the two crimes is also unclear because the record does not show what type 

of weapon Leyba possessed, or that he used the weapon in a manner comparable to 

that demonstrated in this case. The fourth and fifth factors weigh in favor of 

admission because Leyba made his credibility the primary defensive issue in the 

case.

As the proponent of the evidence, the prosecution assumed the burden of 

adducing specific facts and circumstances to show that the probative value of the 

prior conviction substantially outweighed its prejudicial effect. However, the 

prosecution adduced virtually no facts about this conviction, and its value to the 

case does not strike us as great. We conclude that the trial court erred by admitting 

this evidence, but for the same reasons discussed in Section II.B.2, supra, we hold 

that the error was ultimately harmless.
17

5

Leyba has not specifically argued that the trial court’s errors, when viewed 

cumulatively, affected his substantial rights. Nevertheless, we are mindful that 

errors may be harmful in their cumulative effect, even if harmless when separately 

considered. See Stahl v. State, 749 S.W.2d 826, 832 (Tex. Crim. App. 1988); 

Linney v. State, — S.W.3d —, No. 14-11-01015-CR, 2013 WL 1897125, at *13 

(Tex. App.—Houston [14th Dist.] May 7, 2013, pet. filed). Accordingly, we 

address the cumulative harm of the trial court’s errors.

The prosecutor elicited testimony about Leyba’s prior convictions in rapid 

succession, without discussing any of their underlying facts. Leyba’s conviction

for armed robbery was clearly the most serious of his pre-2000 convictions, but the 

prosecutor did not draw specific attention to this offense, or seek to emphasize it 

over any of the others. The prosecutor’s objective was plainly to cast Leyba in an 

unfavorable light, so as to make him appear less credible. We doubt that the 

prosecutor had a substantial need to impeach Leyba with so many remote 

convictions; the prosecution’s case was already quite strong, and at least two

recent, non-remote convictions were available for impeachment purposes. An 

argument could even be made that Leyba’s most recent convictions, which were 

not challenged at trial, diluted the impact of the more remote offenses.

In light of the entire record, we cannot determine that the prosecutor elicited 

this inadmissible evidence for inflammatory purposes, or that the jury was affected 

in such a way as to deprive Leyba of a fair and impartial trial. We therefore reject 

any contention that the cumulative effect of the trial court’s errors was harmful. Cf. 

Stahl, 749 S.W.2d at 830, 832 (finding harm from the cumulative effect of error 

where there was evidence that the prosecutor orchestrated an emotional outburst 
18

during trial, then exacerbated that outburst by making repeated references to it

during closing argument). Leyba’s first issue is overruled.

III

In his second issue, Leyba argues that the trial court abused its discretion by 

excluding evidence of Tate’s criminal history. During a hearing on a motion in 

limine, it was revealed that Tate had a narcotics charge pending at the time of his 

death. Leyba sought to introduce evidence of this charge at trial because it

demonstrated Tate’s involvement in the illegal drug trade. In his brief, Leyba

contends this evidence was admissible because it suggested that Tate may have 

been the first aggressor on the night of the murder. See Tex. R. Evid. 404.

The trial court’s decision to exclude evidence in a pretrial hearing generally 

preserves nothing for appeal. See Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. 

App. 1998); Norman v. State, 523 S.W.2d 669, 671 (Tex. Crim. App. 1975) 

(noting that rulings on a motion in limine are preliminary in nature and subject to 

the trial court’s reconsideration during the trial). To preserve error regarding the 

exclusion of evidence, the defendant must offer the evidence at trial and obtain an 

adverse ruling from the trial court. See Roberts v. State, 220 S.W.3d 521, 532 (Tex. 

Crim. App. 2007). After obtaining an adverse ruling, the defendant must make an 

offer of proof conveying the substance of the proffered evidence so that the 

reviewing court may determine whether the exclusion was erroneous or harmful. 

See Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.1. The proof may be offered 

informally, or through a formal bill of exceptions. See Love v. State, 861 S.W.2d 

899, 901 (Tex. Crim. App. 1993) (“An informal bill will suffice as an offer of 

proof when it includes a concise statement of counsel’s belief of what the 

testimony would show.”). The failure to perform any of these requirements results 

in forfeiture of an appellate complaint. See Warner, 969 S.W.2d at 2.
19

During the pretrial hearing, the trial court granted a motion in limine 

requiring, among other things, that the parties approach before introducing any 

evidence of a witness’s criminal history. During the same hearing, defense counsel 

indicated that he would seek to discuss Tate’s pending charge for possession of a 

controlled substance. The trial judge effectively excluded this evidence, stating, “I 

don’t expect . . . that you would go into that.” Leyba did not object to this 

statement or request a specific ruling regarding the admissibility of Tate’s criminal 

history. Furthermore, Leyba never attempted to introduce evidence of Tate’s 

pending charge during the trial on the merits. Thus, Leyba never received an 

adverse ruling from the trial court, and he never made an offer of proof. Leyba

failed to preserve error. We overrule Leyba’s second issue.

* * *

Having overruled Leyba’s two issues, we affirm the judgment of the trial 

court.

/s/ Jeffrey V. Brown

Justice

Panel consists of Justices Frost, Brown, and Donovan. (Frost, J., concurring).

Publish — Tex. R. App. P. 47.2(b).